B-54254, JANUARY 3, 1946, 25 COMP. GEN. 475

B-54254, JANUARY 3, 1946, 25 COMP. GEN. 475

FEDERAL EMPLOYEES PAY ACT OF 1945 - HOLIDAY COMPENSATION - TOUR OF DUTY INCLUDING PORTION OF HOLIDAY SINCE THE PREMIUM HOLIDAY PAY AUTHORIZED BY SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IS PAYABLE FOR THE ACTUAL NUMBER OF HOURS WORKED ON A HOLIDAY, AN EMPLOYEE'S TOUR OF DUTY EXTENDING OVER PORTIONS OF TWO CONSECUTIVE DAYS, ONE OF WHICH IS A HOLIDAY, MAY NOT BE REGARDED AS FALLING WITHIN THE DAY ON WHICH THE TOUR OF DUTY COMMENCED FOR THE ADMINISTRATIVE EXPEDIENCY OF COMPENSATING THE EMPLOYEE AT HIS REGULAR BASIC RATE FOR THE ENTIRE TOUR OF DUTY BEGINNING OUTSIDE OF BUT EXTENDING INTO THE HOLIDAY, AT THE HOLIDAY RATE FOR THE ENTIRE TOUR OF DUTY BEGINNING WITHIN BUT EXTENDING BEYOND THE HOLIDAY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, JANUARY 3, 1946:

THE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 26, 1945, AS FOLLOWS:

SEVERAL QUESTIONS HAVE BEEN RAISED IN THIS OFFICE CONCERNING THE APPLICATION OF SECTIONS 301 AND 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, CERTAIN CLASSIFIED PER ANNUM EMPLOYEES OF THE DEPARTMENT OF COMMERCE WHOSE REGULAR TOURS OF DUTY CONTAIN HOURS FALLING BETWEEN THE HOURS OF 6 P.M. AND 6 A.M.

YOUR DECISION IS REQUESTED ON THE QUESTIONS, WHICH FOLLOW:

1. IS THE NIGHT DIFFERENTIAL, WHICH IS PAYABLE UNDER SECTION 301 OF PUBLIC LAW 106 FOR HOURS OF DUTY PERFORMED BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. ON A REGULARLY SCHEDULED TOUR OF DUTY, PROPERLY PAYABLE FOR SUCH HOURS OF DUTY FOR WHICH EXTRA HOLIDAY COMPENSATION IS PAYABLE UNDER SECTION 302 OF THE ACT? IF YOUR ANSWER IS IN THE AFFIRMATIVE, IS THE NIGHT DIFFERENTIAL PAYABLE FOR THESE HOURS OF DUTY TO BE COMPUTED ON THE EMPLOYEE'S BASIC RATE OF COMPENSATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 301?

2. IN CASE AN EMPLOYEE'S REGULAR TOUR OF DUTY OVERLAPS 12 O-CLOCK MIDNIGHT, IT IS THE PRACTICE OF THE DEPARTMENT OF COMMERCE TO CONSIDER SUCH TOUR OF DUTY AS FALLING CONSISTENTLY WITHIN THE DAY ON WHICH THE TOUR OF DUTY BEGINS FOR TIMEKEEPING AND OTHER ADMINISTRATIVE PURPOSES. IS THIS ADMINISTRATIVE PRACTICE A PROPER ONE IN CASE A HOLIDAY OCCURS WITHIN THE REGULAR WORK WEEK? FOR EXAMPLE, IF AN EMPLOYEE, WHOSE BASIC WORK W CONSISTS OF 5 EIGHT-HOUR DAYS MONDAY THROUGH FRIDAY, BEGINS HIS TOUR OF DUTY ON WEDNESDAY, A REGULAR WORK DAY, AND ENDS IT ON THURSDAY, A HOLIDAY, MAY HIS ENTIRE TOUR OF DUTY BE CONSIDERED AS FALLING WITHIN THE REGULAR WORK DAY AND THEREFORE PAYABLE AT THE BASIC RATE? FURTHER, IF THE EMPLOYEE IS REQUIRED TO WORK HIS REGULAR TOUR OF DUTY ON THE SHIFT BEGINNING OF THURSDAY, THE HOLIDAY, AND ENDING ON FRIDAY, A REGULAR WORK DAY, MAY HIS ENTIRE TOUR OF DUTY BE CONSIDERED AS FALLING WITHIN THE HOLIDAY AND THEREFORE PAYABLE AT THE EXTRA HOLIDAY RATE?

TITLE III OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, 59 STAT. 298, PROVIDES:

SEC. 301. ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY, ANY PART OF WHICH FALLS BETWEEN THE HOURS OF 6 O-CLOCK POST MERIDIAN AND 6 O-CLOCK ANTEMERIDIAN, SHALL, FOR DUTY BETWEEN SUCH HOURS, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, BE PAID COMPENSATION AT A RATE 10 PERCENTUM IN EXCESS OF HIS BASIC RATE OF COMPENSATION FOR DUTY BETWEEN OTHER HOURS: PROVIDED, THAT SUCH DIFFERENTIAL FOR NIGHT DUTY SHALL NOT BE INCLUDED IN COMPUTING ANY OVERTIME COMPENSATION TO WHICH THE OFFICER OR EMPLOYEE MAY BE ENTITLED: AND, PROVIDED FURTHER, THAT THIS SECTION SHALL NOT OPERATE TO MODIFY THE PROVISIONS OF THE ACT OF JULY 1, 1944 ( PUBLIC LAW NUMBERED 394, SEVENTY- EIGHTH CONGRESS), OR ANY OTHER LAW AUTHORIZING ADDITIONAL COMPENSATION FOR NIGHT WORK.

SEC. 302. OFFICERS AND EMPLOYEES TO WHOM THIS TITLE APPLIES WHO ARE ASSIGNED TO DUTY ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER SHALL BE COMPENSATED FOR SUCH DUTY, EXCLUDING PERIODS WHEN THEY ARE IN LEAVE STATUS, IN LIEU OF THEIR REGULAR PAY FOR THAT DAY, AT THE RATE OF ONE AND ONE-HALF TIMES THE REGULAR BASIC RATE OF COMPENSATION: PROVIDED, THAT EXTRA HOLIDAY COMPENSATION PAID UNDER THIS SECTION SHALL NOT SERVE TO REDUCE THE AMOUNT OF OVERTIME COMPENSATION TO WHICH THE EMPLOYEE MAY BE ENTITLED UNDER THIS OR ANY OTHER ACT DURING THE ADMINISTRATIVE WORKWEEK IN WHICH THE HOLIDAY OCCURS, BUT SUCH EXTRA HOLIDAY COMPENSATION SHALL NOT BE CONSIDERED TO BE A PART OF THE BASIC COMPENSATION FOR THE PURPOSE OF COMPUTING SUCH OVERTIME COMPENSATION. THIS SECTION SHALL TAKE EFFECT UPON THE CESSATION OF HOSTILITIES IN THE PRESENT WAR AS PROCLAIMED BY THE PRESIDENT, OR AT SUCH EARLIER TIME AS THE CONGRESS BY CONCURRENT RESOLUTION MAY PRESCRIBE. PRIOR TO SO BECOMING EFFECTIVE, IT SHALL BE EFFECTIVE WITH RESPECT TO ANY DESIGNATED HOLIDAY ONLY IF THE PRESIDENT HAS DECLARED THAT SUCH DAY SHALL NOT BE GENERALLY A WORKDAY IN THE FEDERAL SERVICE.

IT IS NOTED THAT SECTION 302, SUPRA, PROVIDES THAT EMPLOYEES WHO ARE ASSIGNED TO DUTY ON A HOLIDAY SHALL BE COMPENSATED FOR SUCH DUTY,"IN LIEU OF THEIR REGULAR PAY FOR THAT DAY" AT THE RATE OF ONE AND ONE-HALF TIMES "THE REGULAR BASIC RATE OF COMPENSATION.' HENCE, SINCE THE "REGULAR PAY" OF AN EMPLOYEE COMING WITHIN THE PURVIEW OF SECTION 301, SUPRA, AUTHORIZING THE NIGHT PAY DIFFERENTIAL, IS HIS BASIC RATE OF COMPENSATION PLUS THE PERCENTUM INCREASE AUTHORIZED BY THE SAID SECTION 301, IT NECESSARILY FOLLOWS THAT FOR HOURS OF DUTY BETWEEN 6 O-CLOCK POST MERIDIAN AND 6 O-CLOCK ANTEMERIDIAN, ON HOLIDAYS, UNDER THE PROVISIONS OF SECTION 302, SUPRA, SUCH AN EMPLOYEE IS ENTITLED ONLY TO PAY AT THE RATE OF ONE AND ONE-HALF TIMES HIS REGULAR BASIC RATE OF COMPENSATION. COMPARE QUESTION AND ANSWER NO. 6 IN DECISION OF OCTOBER 10, 1945, B-52478, 25 COMP. GEN. 338, TO THE DIRECTOR, OFFICE OF WAR INFORMATION. THE PERCENTUM INCREASE FOR NIGHT WORK IS NOT TO BE REGARDED AS FORMING A PART OF BASIC COMPENSATION WITHIN THE MEANING OF THAT TERM AS USED IN THE SAID FEDERAL EMPLOYEES PAY ACT. SEE ANSWER TO QUESTION 4 (A) (D) IN DECISION OF JULY 26, 1945, 25 COMP. GEN. 102, 109, TO THE ARCHITECT OF THE CAPITOL. ACCORDINGLY, THE FIRST PART OF QUESTION (A) IS ANSWERED IN THE NEGATIVE, RENDERING IT UNNECESSARY TO ANSWER THE ALTERNATIVE QUESTION CONTAINED IN THE LATTER PORTION THEREOF.

WITH RESPECT TO THE ADMINISTRATIVE PRACTICE FOLLOWED BY THE DEPARTMENT OF COMMERCE IN INSTANCES WHERE AN EMPLOYEE'S TOUR OF DUTY EXTENDS OVER PORTIONS OF TWO CONSECUTIVE DAYS, THAT IS, TO CONSIDER THE TOUR OF DUTY AS ENTIRELY FALLING WITHIN THE DAY ON WHICH THE TOUR OF DUTY BEGINS, IT MAY BE STATED THAT, WHILE FOR ADMINISTRATIVE EXPEDIENCY, SUCH PRACTICE MIGHT BE DEEMED DESIRABLE, THIS OFFICE IS AWARE OF NO AUTHORITY OF LAW THEREFOR. IT WELL MAY BE THAT WHERE, AS IN THE EXAMPLE GIVEN IN YOUR LETTER, AN EMPLOYEE WORKS HIS TOUR OF DUTY BEGINNING OUTSIDE THE HOLIDAY AND EXTENDING INTO THE HOLIDAY AS WELL AS HIS TOUR OF DUTY BEGINNING IN THE HOLIDAY AND EXTENDING OUTSIDE THEREOF, NO DIFFICULTY WILL BE ENCOUNTERED IN COMPUTING HIS PREMIUM PAY FOR HOLIDAY WORK SINCE THE MONETARY LOSS WHICH OTHERWISE WOULD BE OCCASIONED THE EMPLOYEE BY REASON OF RECEIVING PAY AT REGULAR RATES ONLY FOR WORK PERFORMED AT THE START OF THE HOLIDAY IS COMPENSATED BY THE FACT THAT, AT THE END OF THE HOLIDAY, HE IS PAID AT THE HOLIDAY RATE FOR A CORRESPONDING NUMBER OF HOURS WHICH ACTUALLY FALL OUTSIDE THE HOLIDAY. HOWEVER, IT IS NOT APPARENT THAT, UNDER ALL CIRCUMSTANCES, THE ADMINISTRATIVE PROCEDURE WILL OPERATE SO THAT PROPER CREDIT WILL BE GIVEN EMPLOYEES OF THE TYPE MENTIONED FOR HOURS WORKED AT HOLIDAY RATES, OVERTIME RATES, AND REGULAR RATES. WITHOUT DETAILING THE VARIOUS COMBINATIONS OF CIRCUMSTANCES WHICH MIGHT RENDER IMPRACTICABLE THE ADMINISTRATIVE PRACTICE REFERRED TO, IT IS SUFFICIENT TO NOTE THAT WHERE AN EMPLOYEE WORKS THE TOUR OF DUTY STARTING OUTSIDE BUT EXTENDING INTO THE HOLIDAY BUT, FOR SOME REASON, DOES NOT WORK THE TOUR OF DUTY BEGINNING WITHIN THE HOLIDAY, HE WOULD RECEIVE CREDIT FOR THE HOURS WORKED ON THE HOLIDAY AT REGULAR RATES, ONLY, WHEREAS, UNDER THE PROVISIONS OF SECTION 302, SUPRA, HE WOULD BE ENTITLED TO PAY FOR SUCH HOURS AT THE HOLIDAY RATE. CONVERSELY, WHERE AN EMPLOYEE WORKS ONLY THE TOUR OF DUTY BEGINNING WITHIN THE HOLIDAY, HE WOULD RECEIVE HOLIDAY PAY FOR THE ENTIRE TOUR OF DUTY NOTWITHSTANDING THE FACT THAT A PORTION THEREOF FELL OUTSIDE THE HOLIDAY.

SINCE AN EMPLOYEE LEGALLY IS ENTITLED TO PREMIUM PAY AT THE HOLIDAY RATE PRESCRIBED BY THE SAID SECTION 302 FOR THE ACTUAL NUMBER OF HOURS WORKED ON A HOLIDAY, IT SEEMS CLEAR THAT THE ADMINISTRATIVE PRACTICE SET OUT IN YOUR LETTER GIVES RISE TO UNNECESSARY CONFUSION AND POSSIBLE ERRORS IN THE COMPUTATION OF PREMIUM PAY UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND, THEREFORE, YOU ARE ADVISED THAT SUCH PRACTICE SHOULD BE DISCONTINUED. FOR THE REASONS STATED, THE VARIOUS SUBDIVISIONS OF QUESTION 2 ARE ANSWERED IN THE NEGATIVE.